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Jane
Marguerite DOROTIK

Classification: Murderer

Characteristics: Parricide - To
prevent him from receiving 40 percent of her income if the couple
divorced

To many, it seemed to be a perfect life. Jane
and Bob Dorotik had been married for 30 years. But then it all
turned sour. In February 2000, Bob disappeared. Early the next
morning, his body was found by a mountain road near their home. He
had been beaten and strangled.

Three days later police arrested Jane for
murder. She claimed she was completely innocent, and said that she
loved her husband. But police say she had ample motive. The
couple, who had separated and reconciled once, were reportedly not
getting along.

But the main motive was money. Police said that
Jane worried that if the couple divorced, she would have to pay
him almost $50,000 a year in alimony. They said that this would
put a crimp in plans to expand her own business, raising and
grooming horses.

Police also say there was also ample physical
evidence against her. The prosecution claimed that Bob was
actually killed in the couple's house, and then dumped on the
road. Detectives say they found "massive" amounts of blood in the
couple's bedroom.

But many people close to Jane, including her
daughter Claire, insist Jane is innocent and believe the real
killer remains at large. Jane's attorneys came up with an unusual
way to defend their client - and their strategy tears the family
apart.

After deliberating for four days, the jury
found Jane Dorotik guilty of first-degree murder.

As for Jane's daughter – the verdict officially
ended speculation that Claire, not her mom, killed Bob Dorotik.
But it didn't answer all the questions. Some, including the judge
in the case, suggested that Claire may have been involved.

Jane was sentenced to serve 25 years to life in
prison.

Jane Marguerite Dorotik
is an American-born woman who is serving a 25 year-to-life
sentence at the California Institution for Women in Corona,
California for the February 2000 murder of her husband, Bob. Many
people however believe that Jane is innocent of the murder and
that Jane's daughter Claire, who was 24 at the time, was the
actual culprit.

Background

At the time of Bob's murder, he and his wife
Jane Dorotik had been married for 30 years and had 3 children.
Jane was a successful businesswoman and health care executive, and
on her income, the Dorotik family had been able to purchase a
ranch in Valley Center, California. However, the couple had been
experiencing marital difficulties in the years leading up to Bob's
death. A large contributing factor to this was the amount of money
Jane and her daughter Claire spent on their horses. Shortly before
his death, Bob had filed for divorce from Jane, which meant that
Jane, who made significantly more money than her husband, would
have to pay Bob 40 percent of her salary in alimony, which was
almost $50,000 per year. The couple had briefly separated, but
later reconciled and moved into a new home. In addition, the
couple had recently taken out life insurance policies on each
other.

Crime and
Investigation

On the afternoon of February 13, 2000, Jane
Dorotik reported her husband Bob, 55, missing. She claimed to
police that he had gone for a jog several hours earlier and had
not returned. The next morning, Bob's body was found beaten to
death several miles away on the roadside. Police immediately began
to suspect his estranged wife Jane of the crime.

Evidence in the case quickly amounted. At the
scene, police noticed there were three different tire tracks, and
they were able to match the tracks back to Jane's Ford F-250.
Also, in the couple's bedroom, police found a staggering amount of
blood which someone had attempted to clean up. Before the results
of the blood evidence was even returned, Bob's wife Jane was
charged with first-degree murder and was placed in the San Diego
County Jail, but she eventually made bail.

Pre-Trial

Jane Dorotik's murder trial began in May 2001
one year after the murder of her husband. She had already pled not
guilty to the crime, and had already made public appeals
proclaiming her innocence.

Before the trial began, Jane's adult daughter
Claire had been incriminated in the crime. As a matter of fact,
Jane's own defense attorneys had pointed to her as the killer. At
a pre-trial hearing, Claire decided to plead the fifth; she did
not testify at her mother's murder trial, asserting her right
against self-incrimination. Jane's sister Bonnie Long, and a ranch
hand named Leonel Morales, also invoked their Fifth Amendment
rights.

Verdict and
Aftermath

Jane's murder jury deliberated her fate for
more than four days. On June 13, 2001, her jury announced that
Jane was guilty of the charged crime of first-degree murder,

Jane has made several attempts to appeal her
murder conviction on the bases of ineffective assistance of
counsel and failure to do DNA testing. All of her appeals have
been denied, and barring a successful appeal, she will be in
prison until at least the year 2025.

Claire Dorotik, who was implicated in her
father's murder and according to a 2011 interview with Paula Zahn,
still harbors public suspicion, is now a psychotherapist
specializing in equine therapy. She currently lives in Denver,
Colorado and writes to her mother in prison.

Jane Dorotik gets 25 to life
for murder

By Kimberly Epler - NCTimes.com

August 3, 2001

VISTA -- A Superior Court judge on Thursday
sentenced Jane Dorotik, a Valley Center woman convicted of killing
her husband, to 25 years to life in prison after denying a
last-ditch effort by her attorney to secure a new trial.

Judge Joan Weber said testimony given last week
by a new defense witness was fatally flawed and even if a jury
believed the woman, it was not enough to overcome extensive
evidence presented at trial.

The judge also denied a defense request to
delay her ruling while attorneys pursued a new lead. Weber said
the witnesses the defense was seeking could only point to other
people having a role in the murder, not contradict evidence
against Dorotik.

"We will probably never know all the parties
who had a role in aiding and abetting before and after the fact of
the murder," Weber said. "The fact remains there is substantial
circumstantial evidence tying the defendant to this crime beyond a
reasonable doubt.

"How could she get her own husband's blood on
her hands if she was not involved in the homicide?" Weber asked.

A key piece of evidence in the trial was a
syringe with Dorotik's fingerprint in her husband's blood.

Before she was sentenced, Dorotik maintained
her innocence and asked the prosecution to have investigators
continue to search for the true killer.

"I loved my husband," she said. "I still love
my husband. This has not been justice that's served here."

Dorotik, 54, was convicted in June for beating
and strangling her husband, Robert Dorotik, in their bedroom, then
dumping his body along his favorite running path a few miles away
from the horse ranch they rented.

His body was found on Feb. 14, 2000, one day
after Jane Dorotik reported him missing.

Prosecutors contend that Jane Dorotik murdered
her husband to prevent him from receiving 40 percent of her income
if the couple divorced. Robert Dorotik had filed for divorce in
1997, but the couple later reconciled.

After the sentencing, Jane Dorotik fought back
tears as she hugged her defense attorneys, Kerry Steigerwalt and
Cole Casey. Steigerwalt said he will file an appeal within the
next two weeks.

Outside the courtroom, prosecutor Bonnie
Howard-Regan said she was sure the right person was sentenced for
the murder and she was frustrated by defense attempts to delay the
sentencing.

"We've already found the truth. We have no
doubts about that," Howard-Regan said, adding she was anxious to
call the Dorotiks' two sons, who testified against their mother at
trial.

"They want some closure," she said. "They will
always know their mother killed their father. I'm just glad it's
over."

Steigerwalt said he will still try to track
down two witnesses he believes can match testimony presented at
trial.

A man called a homicide detective Wednesday to
say he visited a Valley Center store the day Robert Dorotik's body
was found. There, he was told by a third person about two men who
said that the day before, they saw two Latino men with a white man
slumped in between them parked in a black truck near where the
body was recovered.

Defense witness Lisa Marie Singh told jurors
about a nearly identical sighting at the end of the trial.

Prosecutors argued that even if the two men
could be found, their testimony was irrelevant because blood
evidence ties Jane Dorotik to the murder scene in the house and a
witness saw her driving the truck that is an exact match to tire
prints found where the body was dumped.

The judge agreed. She called the search for the
two men a "fishing expedition" and denied Steigerwalt's request to
have more time to check out the story.

Weber also dismissed the testimony of Sheri
Newton, who said she saw the victim jogging near the area where
his body was found the next day and only moments before she was
nearly hit by a black truck.

Steigerwalt had based his motion for a new
trial on Newton's testimony, saying it backed up Singh's
testimony. Newton came forward after jurors were already in
deliberation and the judge refused at the time to reopen the case.

"It's unfortunate that it ends here," said
Steigerwalt. But, he called the judge's discussion about other
people possibly being involved in the murder a step forward.

"All along we've maintained there was more to
this than Jane Dorotik being the killer," he said.

Bonnie Long, who has steadfastly maintained her
sister Jane Dorotik's innocence, said the family was devastated by
the sentencing.

"It's horrible," she said. "I know he wasn't
killed in the bedroom. I know we came out of there with a lot of
questions unanswered."

Jane Dorotik faces life in
prison

By Kimberly Epler - NCTimes.com

June 13, 2001

VISTA -- A Valley Center woman was found guilty
of first-degree murder Tuesday for beating and strangling her
husband in their bedroom last year, then dumping his body a few
miles away from the horse ranch they rented.

Jane Dorotik, 54, buried her head in her hands
after the verdict was read. She blinked back tears as she stared
at the jurors in disbelief, mouthing the word "No."

Sentencing was set for July 11.

Dorotik faces up to life in prison for the
murder of Robert Dorotik, 55, who was a marathon runner. His
sweat-suit-clad body was found on Feb. 14, 2000, a day after Jane
Dorotik reported him missing. She told investigators the last time
she saw him he was going for a run.

"She's just stunned. She was so convinced she
was going to be found not guilty," defense attorney Kerry
Steigerwalt said after speaking with his client, who earned a
six-figure salary as a senior regional director of operations for
psychiatric hospitals in Southern California.

Prosecutor Bonnie Howard-Regan said the verdict
was a relief. She said the evidence clearly pointed to Jane
Dorotik as the killer. There was nothing to back up the defense's
contention that the couple's daughter, Claire Dorotik, or another
person committed the murder, she said.

"The evidence came out showing Jane Dorotik was
the true perpetrator of this terrible crime," Howard-Regan said.

Jurors declined to comment on the verdict that
was reached late Monday night. One woman answered simply, "yes,"
when asked if it was a difficult decision.

During the trial, the prosecution contended
that Jane Dorotik killed her husband to prevent losing 40 percent
of her $118,000 a year salary if they divorced. His business was
not going well and she was worried that having to support her
husband would put a crimp in her plans to buy property and train
horses, Howard-Regan told jurors.

The Dorotiks separated in 1997 but later
reconciled. The couple's sons testified that their parents often
fought about the money Jane Dorotik spent on horses.

Investigators said they found spatters of
Robert Dorotik's blood on the comforter, the walls and the ceiling
of the couple's bedroom. A larger stain of his blood was said to
have been found on a mattress, which had been flipped over, and
under a portion of the bedroom carpet. In addition, according to
testimony, his blood seeped into a room below the upstairs suite.

The defense pointed to Claire Dorotik, 25, as
the true murderer. She was living with her parents when her father
was killed. Steigerwalt argued she had a rocky relationship with
Robert Dorotik and she was afraid he would take away her horses --
a passion she shared with her mother.

Steigerwalt also argued that investigators
failed to confirm Claire Dorotik's alibi and follow other leads
once they focused their attention on Jane Dorotik.

Steigerwalt said he will file a motion for a
new trial by the end of the month based on information from a
witness who came forward last week. Just before jurors were led
into the courtroom for the reading of the verdict, Steigerwalt
made a second request to reopen the case so jurors could hear
testimony from the woman.

Judge Joan Weber denied the request, as she did
when he first raised the issue last week while jurors were still
in the midst of deliberations.

Several members of Jane Dorotik's family were
in the courtroom when the verdict was read. On the verge of tears,
her sister, Bonnie Long, said she knows Jane Dorotik is innocent.

Jane Dorotik's oldest son, Alex Dorotik, buried
his face in his hands while waiting to hear the jury's decision
and left immediately after the verdict was read. He had testified
for the prosecution during the trial.

A childhood friend who grew up with Robert
Dorotik in El Campo, Texas, said he is still shocked by what
happened.

"Whenever I saw Robert, he was always the same
gentle and intelligent person who came from a wholesome small-town
environment," said Ron Massingill from his office in Dallas. "It
is incredulous to see his life end in such a tragic and inhumane
manner. He will be missed by his family and numerous friends."

COURT OF APPEAL OF
CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE

NOTICE: [*1] NOT
TO BE PUBLISHED IN OFFICIAL REPORTS CALIFORNIA RULES OF COURT,
RULE 977(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING
ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED,
EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT BEEN
CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF
RULE 977.

Jane Margurite
Dorotik was convicted of first degree murder and was sentenced to
a term of 25 years to life. She appeals, arguing the trial court
erred in refusing to instruct concerning the lesser included
offense of voluntary manslaughter and that the evidence was
insufficient to support a finding of malice aforethought or
premeditation and deliberation.

FACTS

In February 2000
appellant and her husband Robert Dorotik (Robert) were living on a
ranch they rented in a rural area near Escondido. The pair had
three adult children. Appellant and Robert frequently argued about
money. Appellant and daughter Claire were horse enthusiasts.
Robert disapproved [*2] of the money spent by appellant to
support that interest. The couple was not particularly
affectionate, sometimes discussed divorce but never had a physical
confrontation.

In 1997 appellant
and Robert separated. Robert filed for divorce and sought spousal
support from appellant whose employment was considerably more
remunerative. The couple reconciled in 1998 and resided together
at the ranch, agreeing to keep their finances separate. Their
relationship was uneven and at times they argued. Robert started a
business but it did not do well.

On the evening of
February 13, 2000, appellant called friends and asked if they had
seen Robert. Appellant explained Robert had gone for a run at 1:00
p.m. and had not returned. Appellant called the sheriff and
reported Robert missing. A search was undertaken. The next day a
sweatshirt, which appellant stated Robert was wearing on his run,
was found on a road about two miles from appellant's home. Shortly
thereafter, Robert's body was found in brush next to a road about
a half mile from where the sweatshirt was located. Appellant was
notified. She started to cry and asked if her husband had
suffered.

It was determined
that Robert died from blunt [*3] force injures to the head, with
ligature strangulation as a contributing factor. He suffered at
least three blows to the head. He had two large lacerations at the
right side and back of the head with skull fractures underneath
those lacerations and direct damage to the brain at the back of
the head. There was a depressed skull fracture on the right side
of the head. In the back of the head the bone was completely
displaced and there was a hole in the skull. Robert had abrasions
on his face and a ligature mark on his neck. There were abrasions
and contusions on his hands that appeared to be defensive wounds.
Robert was alive when strangled. An expert concluded the damage to
Robert's head was consistent with hammer strikes.

The police
interviewed appellant on February 13, 2000. She told the officers
that about 1:00 p.m. Robert told her he was going to jog. She went
to the barn and did not see him leave. When she returned to the
house at 4:00 p.m., Robert was not there. When he had not returned
by 5:00 p.m., she went out looking but could not find him. She
then called the police. Appellant told the officers she and Robert
each had a $ 250,000 life insurance policy with the other as
beneficiary.

[*4] A search
was conducted of appellant's residence. Bloodstains were found in
several areas in the master bedroom. The patterning of some of the
stains was consistent with a beating occurring in the room. When
officers turned over the mattress in the room, they found a
large-volume bloodstain near the headboard. There was a folded,
bloodstained towel between the mattress and box springs. In a bag
in the master bedroom the officers found a syringe containing a
horse tranquilizer. A bloody fingerprint was found on one of the
syringes. The print was identified as appellant's. A bed sheet was
found in a hamper with transfer, drip and impact blood spatters on
it. A steam shampooer and cleaning supplies were found in a living
room closet. Blood was found on the handle, cap and nozzle of one
of the bottles. Bloodstains were also found in the bed of a truck
used at the ranch. DNA testing indicated many of these bloodstains
were consistent with Robert's blood.

An expert in
bloodstain patterning opined that the events started on the bed in
the master bedroom. Robert was struck at least twice and perhaps a
third time on the bed. He remained on the bed for a time after the
assault. At some point [*5] Robert moved or was moved to another
area in the bedroom where he was struck at least once more. Robert
remained in that area for some time.

The expert also
examined the clothes from Robert's body. There were transfer but
no spatter stains on his T-shirt. There was no blood on his
sweatpants. There were two bloodstains and a large amount of feces
on Robert's boxer shorts. There was no blood on his shoes.

Appellant did not
testify. She offered evidence suggesting that someone else killed
Robert.

DISCUSSION

Appellant argues
the evidence was insufficient to prove malice aforethought and
premeditation and deliberation. In a related argument she contends
the trial court erred in refusing to instruct concerning the
lesser included offense of voluntary manslaughter.

A. Instructions on Voluntary Manslaughter

Appellant argues
the trial court erred in denying her request for an instruction on
the lesser included offense of voluntary manslaughter.

At the
instructions conference, appellant, without reference to any
specific facts, stated that the evidence would reasonably allow
the conclusion the killing was the result of a "sudden eruption of
emotions, emotions that clouded one's [*6] ability to form the
necessary mental state required for murder" and that instructions
should, therefore, be given on voluntary manslaughter. The trial
court stated the only conceivable form of voluntary manslaughter
applicable was that based on heat of passion and denied the
requested instruction finding no evidence to support that theory.

Citing Mullaney
v. Wilbur (1975) 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct.
1881, appellant argues this was error since in every murder trial
the prosecution must always prove the absence of heat of passion.
Appellant is incorrect. Mullaney was a murder case in which
the issue of heat of passion was clearly raised by the evidence
and argued by the defense. The jury was instructed that if it
found the killing was intentional and unlawful, malice
aforethought was conclusively presumed unless the defendant proved
by a preponderance of evidence that he acted in the heat of
passion on sudden provocation. (Id. at p. 686.)

The Supreme Court
found such instruction constitutional error and stated: "We
therefore hold that the Due Process Clause requires the
prosecution to prove beyond a reasonable doubt the absence of
[*7] heat of passion on sudden provocation when the issue is
properly presented in a homicide case." (Mullaney v. Wilbu,
supra, 421 U.S. at p. 704, italics added.)

Mullaney
does not require that in every homicide case the prosecution prove
the absence of heat of passion. The prosecution is required to do
so only when the issue is "properly presented." In People v.
Rios (2000) 23 Cal.4th 450 the court, citing Mullaney,
stated the issue of heat of passion is properly presented when
prosecution evidence suggests that the killing may have been
provoked or when the defense makes a showing of provocation. (Id.
at pp. 461-462.)

To require an
instruction on a lesser offense there must be evidence substantial
enough to merit consideration by the jury. " ' "Substantial
evidence' . . . is " 'evidence from which a jury composed of
reasonable [persons] could conclude[]' " that the lesser
offense, but not the greater, was committed. (Citations.]'
[Citations.]" (People v. Hughes (2002) 27 Cal.4th 287,
366-367.)

There was no
substantial evidence in this case requiring an instruction on
voluntary manslaughter based [*8] on provocation and heat of
passion. Voluntary manslaughter has specific and relatively
complex elements. In the context of this case voluntary
manslaughter is an intentional, unlawful homicide upon a sudden
quarrel or heat of passion if the killer's reason was actually
obscured as the result of a strong passion aroused by a
provocation sufficient to cause an ordinary person of average
disposition to act rashly or without due deliberation and
reflection, and from this passion rather than judgment. No
specific type of provocation is required, and the passion aroused
need not be anger or rage but can be any violent, intense,
high-wrought or enthusiastic emotion other than revenge. Thus, a
person who intentionally kills as a result of provocation, that is
upon a sudden quarrel or heat of passion, lacks malice and is
guilty not of murder but of the lesser offense of voluntary
manslaughter. (People v. Lasko (2000) 23 Cal.4th 101, 108,
999 P.2d 666.)

Appellant's
attempt on appeal to demonstrate substantial evidence of
provocation and heat of passion is unavailing. She notes evidence
of her peaceful character, of Robert's difficulties with anger
management, his occasional [*9] verbal humiliation of appellant,
the brutality of the killing and the lack of an apparent motive.
Such evidence at best allows speculation that appellant killed
Robert out of anger. It is, however, not substantial evidence of
provocation and heat of passion. The trial court properly denied
appellant's request for instructions on voluntary manslaughter.

B. Sufficiency of the Evidence

Appellant argues
the prosecution failed to offer evidence that either directly or
by reasonable inference supported a finding of premeditated and
deliberated murder. She further argues the evidence was
insufficient to support a finding of malice aforethought since she
contends the prosecution failed to meet its burden of proving an
absence of heat of passion.

In determining
whether the evidence is sufficient to support the verdict, we
review the entire record viewing the evidence in the light most
favorable to the judgment and presuming in support of the verdict
the existence of every fact the jury could reasonably deduce from
the evidence. The issue is whether the record so viewed discloses
evidence that is reasonable, credible and of solid value such that
a rational trier of fact could find the [*10] elements of the
crime beyond a reasonable doubt. (People v. Pugh (2002) 104
Cal.App.4th 66, 72.)

As noted above, we
conclude the prosecution in this case had no burden of proving a
lack of heat of passion and, therefore, no issue as cast by
appellant arises concerning the sufficiency of evidence supporting
a finding of malice aforethought.

Appellant's
argument concerning the sufficiency of evidence to support a
finding of premeditation and deliberation is less easily resolved.
CALJIC No. 8.20 is a correct statement of the concept of
premeditation and deliberation. (People v. Perez (1992) 2
Cal.4th 1117, 1123, 831 P.2d 1159.) The instruction defines
"deliberate" to mean "formed or arrived at or determined upon as a
result of careful thought and weighing of considerations for and
against the proposed course of action." "Premeditated" means
"considered beforehand."

To be first degree
murder the killing must be "preceded and accompanied by a clear,
deliberate intent on the part of the defendant to kill, which was
the result of deliberation and premeditation, so that it must have
been formed upon pre-existing reflection and not under a sudden
heat of [*11] passion or other condition precluding the idea of
deliberation." (CALJIC. No. 8.20.)

However, "The law
does not undertake to measure in units of time the length of the
period during which the thought must be pondered before it can
ripen into an intent to kill which is truly deliberated and
premeditated. The time will vary with different individuals and
under varying circumstances." (CALJIC. No. 8.20.)

The test is not
the "duration of time, rather the extent of the reflection. A
cold, calculated judgment and decision may be arrived at in a
short period of time, but a mere unconsidered and rash impulse,
even though it includes an intent to kill, is not deliberation and
premeditation as will fix an unlawful killing as murder in the
first degree." (CALJIC. No. 8.20.)

"To constitute a
deliberate and premeditated killing, the slayer must weigh and
consider the question of killing and the reasons for and against
such a choice and having in mind the consequences she decides to
and does kill." (CALJIC. No. 8.20.)

In determining
whether sufficient evidence supports a verdict of first degree
murder, we look generally for evidence of planning activity,
motive to kill and the manner of killing. [*12] There is,
however, no formula or particular combination of these factors
necessary for a finding of premeditation and deliberation. (People
v. Koontz (2002) 27 Cal.4th 1041, 1080-1082; People v.
Perez, supra, 2 Cal.4th at pp. 1124-1126.)

The Attorney
General argues the evidence showed planning, a motive to kill and
manner of killing supportive of a finding of first degree murder.
As to planning, the People assert that the presence of two
weapons, i.e., a rope and a hammer, allows the inference that at
least one of the weapons was ready in the bedroom in anticipation
of the killing. The Attorney General also finds evidence of
planning in the absence of Claire from the home at the time of the
killing and the fact she would not return for a lengthy period. We
conclude these factors suggest little about planning. It is mere
speculation that one or more of the weapons was in the bedroom in
anticipation of killing Robert and Claire's absence could be mere
happenstance.

The Attorney
General finds evidence of motive in appellant and Robert's
troubled marriage, in their financial disagreements and in
appellant's desire for financial independence. The People [*13]
note a divorce would in all probability have led to appellant
paying Robert spousal support. In addition, the proceeds of his
life insurance policy would have been a financial windfall and
done much to advance appellant's life plans.

While there is
some generic evidence of motive in this case, it is not the
particular and specific kind that would, on its own, strongly
support a conclusion that a murder was premeditated and
deliberated.

The crucial
evidence of appellant's state of mind in murdering Robert is the
manner of killing. In reviewing that evidence it is important to
remember that detailed and meaningful planning is not an element
of premeditation and deliberation. The question rather is whether
the evidence supports a finding of "pre-existing reflection,"
whether evidence suggests a weighing and considering of the
consequences in deciding to kill.

The hammer blows
to Robert's head were all to the back and side. The assault began
while Robert was on the bed in the master bedroom. Such evidence
strongly suggests that Robert was not aware of a pending attack,
that he was in a position of particular vulnerability and relative
defenselessness. An attack of this deadly sort on [*14] a person
in such a position allows the conclusion that the assault was not
an act of impulse but was calculated. After the assault Robert was
on the bed bleeding for some period of time. He was later moved or
he moved to another position in the bedroom where he was again
struck in the back or side of the head. At some point while still
alive Robert was strangled. The use of multiple blows to the head
over a period of time and in different locations evidences not
only an intent to kill but time to reflect and consider. This
conclusion is made stronger by the use of multiple weapons.

We conclude that a
rational trier of fact could find elements of premeditated murder
beyond a reasonable doubt.

The judgment is
affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF
CALIFORNIA

Dorotik v. Davidson

JANE M. DOROTIK, PETITIONER,
v.
DAWN DAVIDSON, WARDEN RESPONDENT.

June 12,
2009

The opinion of the court was delivered by: Hon.
Napoleon A. Jones, Jr. United States District Judge

A state prisoner may not appeal the denial of a
§ 2254 habeas petition unless she obtains a certificate of
appealability from a district or circuit judge. 28 U.S.C. §
2253(c)(1)(A). In deciding whether to grant a certificate of
appealability, a court must either indicate the specific issues
supporting a certificate or state reasons a certificate is not
warranted. See United States v. Asrar, 116 F.3d 1268, 1270
(9th Cir. 1997). A certificate of appealability is authorized "if
the applicant has made a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). To meet this
standard, a petitioner must show that: (1) the issues are
debatable among jurists of reason, (2) a court could resolve the
issues in a different manner, or (3) the questions are adequate to
deserve encouragement to proceed further. Lambright v. Stewart,
220 F.3d 1022, 1024-25 (9th Cir. 2000) (internal citations
omitted). A petitioner does not need to show that he "should
prevail on the merits. He has already failed in that endeavor."
Lambright, 220 F.3d at 1025 (citing Barefoot v. Estelle, 463
U.S. 880, 893 n.4 (1983)). The Court has a duty to construe
the pleadings liberally and must afford the plaintiff the benefit
of any doubt where the plaintiff appears pro se. See Jackson v.
Carey, 353 F.3d 750, 757 (9th Cir. 2003).

Analysis

In her Application, Petitioner raises the
following issues: (1) "whether the state court's resolution of
Petitioner's claim for ineffective assistance of counsel,
including failure to investigate, was the product of an
unreasonable application or contrary to U.S. Supreme Court
precedent"; (2) "whether the state court acted with an
unreasonable application or contrary to U.S. Supreme Court
authority by denying Petitioner's claim that she was denied the
right to present a defense by not allowing a key witness to
provide her information to the jury and by denying DNA testing";
and (3) "whether the state court acted with an unreasonable
application or contrary to U.S. Supreme Court authority by denying
Petitioner's right to overcome a procedural default based on
delayed discovery and actual innocence." (Application at 2.)

I. Ineffective Assistance of Counsel

Petitioner claims that she is entitled to a
certificate of appealability on the grounds that defense counsel's
assistance was constitutionally substandard. (Application at 5.)
Claims of ineffective assistance of counsel are governed by
Strickland v. Washington, 466 U.S. 668 (1984). To make out
a claim of ineffective assistance of counsel under Strickland,
Petitioner must show (1) "that counsel's performance was
deficient" and (2) "the deficient performance prejudiced the
defense." Id. The court need not address both the performance
prong and the prejudice prong if the petitioner fails to make a
sufficient showing of either. Strickland, 466 U.S. at 700. The
Strickland test applies in full force in federal collateral
proceedings. Id. at 697.

The first prong of the Strickland test for
deficiency of counsel requires a plaintiff to demonstrate that
counsel "made errors so serious that counsel was not functioning
as the 'counsel' guaranteed by the Sixth Amendment." Strickland,
466 U.S. at 687. "[T]he defendant must show that counsel's
representation fell below an objective standard of reasonableness
... under prevailing professional norms." Id.at 688. Furthermore,
judicial scrutiny of counsel must be highly deferential because of
the risk that the benefit of hindsight would make the counsel's
performance seem unreasonable. Id. at 689.

The second prong of the Strickland test
requires that any deficiency of counsel also be prejudicial. Id.
at 692. Therefore, even if a defendant is able to show that
counsel acted unreasonably, he still must show that counsel's
actions had an adverse effect on the outcome. Id. at 693. "The
defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694.

Petitioner argues that her Sixth Amendment
right to receive effective assistance of counsel was violated in
that counsel failed to: (1) make a sufficient investigation before
pursuing the flawed theory that Petitioner's daughter was the
killer; (2) strenuously challenge the prosecution's theory of time
of death; (3) provide meaningful adversarial analysis by
presenting independent forensic evidence at trial; (4) prepare and
call Petitioner as a witness; (5) demonstrate that Petitioner was
physically incapable of committing the murder as theorized by the
prosecution; (6) object or move for a mistrial when a police
detective testified that he believed that Petitioner was the
murderer; (7) obtain DNA testing on several items of physical
evidence; (8) present alternate scenarios consistent with the
physical evidence; (9) provide innocent explanations for the
apparently incriminating evidence; (10) present evidence that the
police focused on Petitioner from the beginning of the
investigation and failed to follow other leads which would have
led them to the real killer; and (11) make good on promises to the
jury regarding what the evidence would show, refrain from
admitting to the jury that Petitioner was guilty, and refrain from
stating that counsel personally did not believe in the evidence he
presented at trial. (Application at 5-14; Denial at 8-9; Petition
at 16-46.) Petitioner fails to make a substantial showing of the
denial of a constitutional right by ineffective assistance of
counsel, as interpreted through Strickland, with respect to all
allegations enumerated in said claim.

A. Deficiency of Counsel

Petitioner fails to show that counsel's
representation was deficient under Strickland. First, counsel is
strongly "presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment." Strickland, 466 U.S. at 690. Therefore,
this Court must begin its analysis on the presumption that counsel
acted reasonably with regard to the enumerated allegations.

When determining whether counsel's assistance
is deficient, the Court must consider "whether counsel's
assistance was reasonable considering all the circumstances."
Strickland, 466 U.S. at 688. Here, the circumstances support the
presumption that defense counsel made reasonable strategic
decisions with regard to his handling of expert testimony and
forensic evidence. Forensic evidence found in Petitioner's bedroom
showed an impact spatter of the victim's blood; bloodstains
consistent with the victim's blood were found in the bed of a
truck used at the ranch; and Petitioner's fingerprint was found in
the victim's blood on a syringe found in the bathroom. (See Denial
at 9--13.) This and other voluminous evidence against Petitioner
made it objectively reasonable for counsel to believe that
acquiring any additional forensic testing or testimony could be
harmful to the defense. See Strickland, 466 U.S. at 691 ("[W]hen a
defendant has given counsel reason to believe that the
investigations would be fruitless or even harmful, counsel's
investigations may not later be challenged as unreasonable.").

While another defense attorney might have
performed differently with regard to the handling of the
investigation, witness testimony, forensic evidence, and trial
conduct, this alone does not establish counsel's deficiency. See
Strickland, 466 U.S. at 689-690 ("There are countless ways to
provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular client in
the same way.") (internal citations omitted). Counsel was not
required to raise every argument available, see Boag v. Raines,
769 F.2d 1341 (9th Cir. 1985) ("Failure to raise a meritless
argument does not constitute ineffective assistance."), and
contrary to Petitioner's allegations the record suggests that
counsel's representation was objectively reasonable. See, e.g.,
Denial at 18, 22 (showing that counsel retained defense expert Dr.
Curran, provided him with information about Petitioner's medical
history, and obtained information from co-counsel's discussion
with him, and further that counsel retained tire expert Lisa
DiMaio and presented evidence at trial of a tire mark found near
the victim's body that supported the defense theory that Leonel
Morales murdered the decedent).

Finally, Petitioner's arguments with respect to
counsel's deficiency and prejudice are largely based on
speculation and generally unsupported by either law or the record.
Such hindsight speculation cannot raise an issue debatable among
jurists of reason that counsel's assistance was constitutionally
deficient nor that her defense was prejudiced. See James v. Borg,
24 F.3d 20, 26 (9th Cir. 1994); Blackledge v. Allison,
431 U.S. 63, 74 (1977); see also Simmons v. Gramley, 915
F.2d 1128, 1134 (7th Cir. 1990) ("[C]ursory allegations that
are purely speculative cannot support a claim of lack of
competence of counsel.").

Petitioner fails to show an issue debatable
among jurists of reason that counsel's conduct with regard to the
enumerated allegations rose to the level of constitutionally
deficient assistance established by Strickland or its progeny.
See, e.g., Williams v. Taylor, 529 U.S. 362, 395-96, 368-69
(2000) (finding counsel's assistance deficient when he failed to
prepare for sentencing until a week beforehand, made a mistake of
law that prevented his use of extensive records that could have
benefitted the defense, and spent the weight of his closing
argument telling the jury that it was difficult to find reasons
why they should spare his client's life). Therefore, the Court
FINDS that Petitioner has not made a substantial showing of the
denial of a constitutional right with respect to this claim.

B. Prejudice to Defense

Petitioner has not made a substantial showing
that counsel's assistance prejudiced her defense. As alluded to in
the Deficiency of Counsel section, supra, there was a considerable
amount of forensic and testimonial evidence weighing against
Petitioner at trial, not the least of which was Petitioner's
fingerprint in the victim's blood and the testimony of
Petitioner's two sons contradicting her assertion that she was
physically incapable of moving the body. [Denial at 9-13, 18.]
Assuming counsel had done what Petitioner suggests he should have,
there is no reasonable probability that the jury would have
changed their verdict in light of the voluminous evidence against
her. Petitioner offers only speculation to show that the
alternative measures she suggests would have affected the jury,
and this speculation is insufficient to make a showing of
prejudice under Strickland. See James v. Borg, 24 F.3d 20,
26 (9th Cir. 1994); Blackledge v. Allison, 431 U.S. 63, 74
(1977); see also Simmons v. Gramley, 915 F.2d 1128, 1134
(7th Cir. 1990).

While a different course of action by counsel
might arguably have had some effect on the jury, "[i]t is not
enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding. Virtually
every act or omission of counsel would meet that test . . . ."
Strickland, U.S. at 693 (internal citations omitted).

Petitioner has failed to show an issue
debatable among jurists of reason that there is a reasonable
probability that, but for counsel's alleged unprofessional errors,
the result of the proceeding would have been different. Therefore,
the Court FINDS that Petitioner has not made a substantial showing
of the denial of a constitutional right with respect to this claim
and DOES NOT CERTIFY this claim for appeal.

II. Brady Violations, DNA, and Witness
Newton

The due process clause requires the prosecution
to disclose to the defense any evidence that is material either to
guilt or to punishment. Pennsylvania v. Ritchie, 480 U.S. 39,
57 (1987); United States v. Bagley, 473 U.S. 667, 674
(1985); United States v. Valenzuela-Bernal, 458 U.S. 858,
873 (1982); Brady v. Maryland, 373 U.S. 83, 87 (1963).
Evidence is material "if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the
proceeding would have been different." Kyles v. Whitley, 514
U.S. 419, 433 (1995) (quoting United States v. Bagley, 473
U.S. at 682 (opinion of Blackmun, J.)); Pennsylvania v. Ritchie,
480 U.S. at 57; see also United States v. Valenzuela-Bernal, 458
U.S. at 868. "A 'reasonable probability of a different result is .
. . shown when the government's evidentiary suppression
'undermines confidence in the outcome of the trial.'" Kyles v.
Whitley, 514 U.S. at 434 (quoting United States v. Bagley, 473
U.S. at 678).

Petitioner raises the following issues in the
second claim of her Application: "whether the court acted contrary
to or applied an unreasonable application of U.S. Supreme Court
authority by denying Petitioners [sic] claim that she was denied
the right to present a defense by the cumulative effect of the
Brady violation, by not allowing the jury to hear information from
a key witness, and by not allowing DNA testing of the murder
weapon and other evidence." (Application at 15).

A. DNA Testing

Petitioner claims that her due process rights
and rights under California Penal Code §1404-1405 were violated
because the prosecution failed to have DNA testing performed on a
piece of rope alleged to be a murder weapon. (Application at 15.)

In the Denial, the Court found that the
prosecution's decision not to conduct further DNA testing did not
constitute a Brady violation. (Denial at 33.) The Court opined
that Petitioner failed to establish "a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different" (See Denial at 33
(quoting Kyles, 514 U.S. at 433-34) (internal quotations
omitted).)

Petitioner fails to make a substantial showing
that the prosecution's decision not to conduct further DNA testing
amounted to a denial of a constitutional right under Brady. First,
Petitioner does not explain why DNA evidence recovered from the
rope would have had any exculpatory or impeaching value; at best,
Petitioner offers only speculation as to why the rope tends to
show her innocence. Petitioner's mere speculation does not create
a substantial showing of a reasonable probability that, had the
rope been disclosed to the defense, the result of the proceeding
would have been different.

Therefore, the Court FINDS that Petitioner has
not made a substantial showing of the denial of a constitutional
right with respect to this claim and DOES NOT CERTIFY this claim
for appeal.

B. Witness Newton

Petitioner claims that her constitutional
rights were violated because the prosecution failed to disclose or
delayed disclosing the identity of witness Singh, which ultimately
led to the jury's inability to hear information from witness
Newton. (Application at 15.)However, neither Newton's testimony
nor the collective testimony of all four witnesses would create an
issue debatable among jurists of reason that there was a
reasonable probability of a different result, especially
considering the significant amount of evidence against Petitioner
that could not be effectively disputed by the witnesses'
testimony. Here the evidentiary suppression does not undermine
confidence in the trial. Therefore, the Court FINDS that
Petitioner has not made a substantial showing of the denial of a
constitutional right with respect to this claim and DOES NOT
CERTIFY this claim for appeal.

C. Cumulative Effect

Petitioner argues that the Court erred in not
considering the cumulative effect of the Brady violations. In her
Petition, Petitioner claimed that her due process rights were
violated when the state: (1) failed to provide and caused delay in
providing police interviews of witness Singh which deprived and
delayed the defense from pursuing a favorable investigation; (2)
failed to notify defense of evidence that tended to impeach the
reliability of state's expert witness by showing the expert had
made error in other cases and had employed faulty methodology; and
(3) denied Petitioner's motion for a new trial, which resulted in
excluding from the jury the testimony of witness Newton. (Petition
at 46.) Petitioner additionally argued that defense counsel's
insufficiency amounted to a Brady violation. (See Traverse at 22).

Under Kyles, evidence suppressed must be
"considered collectively, not item by item." Kyles, 514 U.S. at
437. Petitioner fails to establish that the cumulative effect of
the Brady violations shows a reasonable probability that, had the
net evidence been provided, the result of the proceedings would
have been different. Therefore, the Court FINDS that Petitioner
has not made a substantial showing of the denial of a
constitutional right with respect to this claim and DOES NOT
CERTIFY this claim for appeal.

III. Procedural Default

Petitioner seeks a COA on the following two
Brady claims: (1) the prosecution withheld information regarding
witness Singh which was favorable to the defense; and (2) the
court improperly denied Petitioner's motion for a new trial. (See
Denial at 28.) The Court found that adequate and independent state
procedural grounds barred it from addressing the merits of the
aforementioned two claims. (See Denial at 28-29 (citing In re
Clark,
5 Cal. 4th 750, 766-67 (Cal. 1993)
and quoting Ex parte Dixon,
41 Cal. 2d 756, 759 (Cal. 1953).) The
Court concluded that Petitioner failed to establish the cause or
prejudice necessary to excuse the default, or otherwise show that
a fundamental miscarriage of justice would result from the court's
refusal to hear the claim. (Denial at 30-32.)

When the district court denies a claim on
procedural grounds rather than reaching the merits of the
constitutional claim, this Court should issue a certificate of
appealability if the petitioner meets two components. See Slack,
529 U.S. at 484-85. First, the petitioner must show "that jurists
of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right." Id. at 484.
Second, the petitioner must show "that jurists of reason would
find it debatable whether the district court was correct in its
procedural ruling." Id. As both of these components are necessary
to obtain a COA, this court may resolve either issue first. See
id. at 485; Petrocelli v. Angelone, 248 F.3d 877, 884 & n.6
(9th Cir. 2001).

Petitioner fails to satisfy Slack'stwo-prong
test. First, Petitioner fails to explain why jurists of reason
would find it debatable whether the Court erred in its procedural
ruling. A review of the record shows that the Court correctly
found that state procedural rules barred it from reviewing the
case absent a showing of cause and prejudice or Petitioner
otherwise showing that a fundamental miscarriage of justice would
result, all of which Petitioner failed to establish. (See Denial
at 28-31.) Second, Petitioner fails to show that jurists of reason
would find it debatable that the Petition states a valid claim of
the denial of a constitutional right. Slack, 529 U.S. at 484.
Therefore, the court DENIES Petitioner's Petitioner's request for
a certificate of appealability with regard to this claim.

IV. Motion for Leave to Proceed in Forma
Pauperis

Petitioner, a state prisoner proceeding pro se,
has submitted a request to proceed in forma pauperis on appeal.
See 28 U.S.C. § 1915(a)(3); FED.R.APP.P. 24(a). Petitioner has
filed a notice of appeal in this action and a financial affidavit
which shows $0.00. Petitioner cannot afford the $105.00 appellate
filing fee. Thus, the Court GRANTS Petitioner's motion to proceed
in forma pauperis, certifies that an appeal in this action is
taken in good faith, and allows Petitioner to prosecute his appeal
of this action as a poor person without being required to prepay
fees or costs and without being required to post security.

Conclusion

(1) The Court DENIES Petitioner's Application
for Certificate of Appealability on all claims; and (2) The Court
GRANTS Petitioner's Motion for Leave to Appeal in Forma Pauperis.